Excerpt: - .....not only on the failure to file a return but also for the failure to file a return within the time prescribed by the section. the imposition of a penalty for failure to file a return within the time prescribed but before assessment is not specifically provided for in section 10 of the super profits tax act, 1963, mr. sen, the learned counsel for the department, submits that it is inherent in the provision of section 6 of that act that unless the assessee files the return within the time prescribed under sub-section (1) or sub-section (2) or within the further time allowed or extended by the income-tax officer the assessee would be punishable as having failed to file a return in terms of section 6. the learned counsel points out that in section 6(3) the words are : 'any assessee who.....

Judgment:

K.L. Roy, J.

1. In my opinion this application under Article 226 of the Constitution should succeed and the rule should be made absolute.

2. The petition involves a consideration of certain provisions of the Super Profits Tax Act, 1963, which had a very short existence as it was superseded by the enactment of the Companies (Profits) Surtax Act, 1964. Under the 1963 Act, a charge of tax was on the chargeable profits of the previous year which exceeded the standard deduction at the rate specified in Schedule III of the Act. Section 6 provided for the making of returns. Sub-section (1) of that section enacted that every company, whose chargeable profits assessable under the Act exceeded during the previous year the amount of standard deduction, should furnish a return of its chargeable profits during the previous year and the amount of any deficiency available for being set off against such profits in the prescribed form and verified in the prescribed manner on or before the 30th day of September of the assessment year. It was further provided that, on an application being made in that behalf, the Income-tax Officer might, in his discretion, extend the date for the furnishing of the return. Sub-section (2) provided that, where the Income-tax Officer had reason to believe that a company was assessable under the Act, he might serve a notice upon its principal officer to furnish within 30 days from the date of service of the notice a return of the chargeable profits of the company during the previous year in the prescribed form and verified in the prescribed manner. There was also a proviso to this sub-section that on an application being made, the Income-tax Officer might in his discretion extend the date for the furnishing of the return. Sub-section (3) of that section, which is material for the purposes of this application, was as follows:

'Any assessee who has not furnished a return during the time allowed by the Income-tax Officer under Sub-section (1) or Sub-section (2), or having furnished a return under Sub-section (1) or Sub-section (2), discovers any omission or wrong statement therein, may furnish a return or a revised return, as the case may be, at any time before the assessment is made.'

Section 10 of the Act provided for penalties for non-filing of returns as follows :

'If the Income-tax Officer, in the course of any proceedings under this Act, is satisfied that any person has, without reasonable cause, failed to furnish the return required under Section 6, .... he may direct that such person shall pay, by way of penalty, in addition to the amount of super profits tax payable, a sum not exceeding-

(a) where the person has failed to furnish the return required under Section 6, the amount of super profits tax payable..... Provided that the Income-tax Officer shall not impose any penalty under this section without the previous authority of the Inspecting Assistant Commissioner.'

The petitioner in this case, Calcutta Chromotype (Pr.) Ltd., furnished its return under Section 6 of the aforesaid Act before the respondent-Income-tax Officer, on the 30th August, 1967, in respect of the assessment year 1963-64. An assessment was made on the petitioner in respect of the aforesaid year by the respondent-Income-tax Officer on the 21st November, 1957, on the basis of the return filed. By a notice dated the 10th November, 1967, purported to be issued under Section 10 of the Act, the respondent-Income-tax Officer required the principal officer of the petitioner-company to show cause why an order imposing a penalty should not be made under Section 10 of the Super Profits Tax Act, 1963, as in the course of the proceedings before him for the assessment year 1963-64, it appeared to him that the petitioner had without reasonable cause failed to furnish the return of chargeable profits which he was required to furnish, under Section 6(1) of the Super Profits Tax Act, 1963.

3. Dr. Pal, appearing for the petitioner, submits that under Section 6(3) of the Act, the petitioner was entitled to furnish a return at any time before the assessment was made and in fact such a return was filed and accepted by the respondent and an assessment made on the basis of such return. Therefore, there was no failure on the part of the petitioner to furnish a return as required under Section 6 and therefore the impugned notice for the purpose of imposing penalty under Section 10 was bad in law as the Income-tax Officer was not entitled to impose any such penalty. Dr. Pal pointed out that the provisions of the said Section 6 are similar to those of Section 139 of the Income-tax Act, 1961, and Section 22 of the Income-tax Act, 1922. Under Section 139(1) of the 1961 Act every person whose total income exceeds the taxable limit has to furnish a return verified in the prescribed manner on or before the 30th June of the assessment year. There is a proviso to that section empowering the Income-tax Officer to enlarge the time on an application being made by the assessee. Similarly, Sub-section (2) of that section empowers the Income-tax Officer to serve a notice on a person, who is assessable under the Act, to file a return within 30 days from the date of the notice and in that case also there is a provision allowing the Income-tax Officer to extend the time for furnishing the return on an application made to that effect by the assessee. Sub-section (3) of Section. 22 of the Act of 1922 and Sub-section (5) of Section 139 of the Act of 1961 provide that:

'If any person having furnished a return under Sub-section (1) or Subsection (2), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the assessment is made.'

The provision for penalty in the Income-tax Act which is contained in Section 271 of the Act, 1961, expressly provides for penalty in a case wherethe return is filed beyond the time allowed under the provisions of Section 139 but before the assessment is completed. Section 271(1) enacts that 'if the Income-tax Officer .... in the course of any proceedings under this Act, is satisfied that any person--(a) has without reasonable cause failed to furnish the return of his total income which he was required to furnish under Sub-section (1) ...or... Sub-section (2) of Section 139 ...or has without reasonable cause failed to furnish it within the time allowed and in the manner required by Subsection (1) of Section 139 or by such notice as the case may be', then the Income-tax Officer is entitled to impose on the assessee certain penalties. Now, this section makes it clear that the penalty is imposable not only on the failure to file a return but also for the failure to file a return within the time prescribed by the section. The imposition of a penalty for failure to file a return within the time prescribed but before assessment is not specifically provided for in Section 10 of the Super Profits Tax Act, 1963, Mr. Sen, the learned counsel for the department, submits that it is inherent in the provision of Section 6 of that Act that unless the assessee files the return within the time prescribed under Sub-section (1) or Sub-section (2) or within the further time allowed or extended by the Income-tax Officer the assessee would be punishable as having failed to file a return in terms of Section 6. The learned counsel points out that in Section 6(3) the words are : 'Any assessee who has not furnished a return during the time allowed by the Income-tax Officer under Sub-section (1) or Sub-section (2)'. Therefore, a return could be filed in terms of Section 6 only within the period prescribed in Sub-section (1) or Sub-section (2) or within the time extended by the Income-tax Officer for that purpose. As in this case assessee filed his return long after the period prescribed in Sub-section (1) had expired and no application has been made to the, Income-tax Officer for extension of time he would be deemed to have failed to file his return in terms of Section 6and would be liable to penalty in Section 10. I am entirely unable to accept this submission. If it was the intention of the legislature to penalise an assessee for filing a return not within the time allowed under the section while permitting the assessee to file such a return at any time before theassessment was actually completed, then unless there were specific words in the section imposing such penalty as there are in the corresponding sectionsof the Income-tax Act, no penalty could be imposed for failure to file a return on the ground that the return was not filed within the period prescribed by Section 6. In my opinion, under the relevant provisions of the Super Profits Tax Act, 1963, the Income-tax Officer is not entitled to impose a penalty on the petitioner on the ground of failure to file a return within the time prescribed under that section when the return is filed before theassessment is made and the Income-tax Officer completes the assessment on the basis of such a return.

4. The rule, therefore, must be made absolute. There would be a writ in the nature of certiorari quashing the impugned notice and also a writ in the nature of prohibition forbidding the respondent from giving any effect to or taking any proceeding thereunder. There would be no order as to costs.